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TMI Blog2009 (7) TMI 1153X X X X Extracts X X X X X X X X Extracts X X X X ..... import allotment or the burden shifted on the Department to produce any such evidence that it may have, after due investigation, especially in view of the fact that the Department had also within its knowledge that there was an import allotment order. The record does not reflect that the Department made any effort to investigate the said matter but simply initiated the proceedings on the basis of the information received. Thus the proceedings initiated under section 21 of the Act were wholly illegal and are liable to be set aside by this court.The revision is allowed. - - - - - Dated:- 3-7-2009 - BHARATI SAPRU , J. MS. BHARATI SAPRU J. Heard learned counsel for the assessee Shri K. Saxena and Shri K.M. Sahai, learned counsel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , as non-taxable by passing an order dated December 24, 1986. Subsequently, proceedings were initiated under section 21 of the U.P. Trade Tax Act, on the basis of the information received by the authorities that the assessee had been allotted 3,625 M.T. of coal for import and an order was passed on March 7, 1988 by which his turnover was estimated at Rs. 14,50,000 and he was subjected to a tax of Rs. 58,000. Aggrieved by this order, the assessee filed an appeal under section 9 and at the time of hearing of the aforesaid appeal, he filed an affidavit wherein he stated that he had not utilized the coal that was allotted to him in the year 1982-83 and in fact, he had shut down his business and no sales and purchases were made by him in t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hemently argued that the proceedings under section 21 of the U.P. Trade Tax Act were wrongly initiated against the assessee on account of the fact that the proceedings were initiated without there being any basis or reason to believe that any turnover had escaped assessment. But rather, it was only on the basis of information and that by itself was not sufficient to invoke the provisions of section 21 of the Act. The learned counsel has argued that there was absolutely no evidence on record to show that any turnover has escaped the assessment to tax and, therefore, the proceedings under section 21 were invalid. The learned counsel has further argued that the Tribunal has wrongly come to the conclusion that the assessee failed to disch ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Department, especially in view of the fact that once the assessee had filed the affidavit stating that he had not utilized the allotment order, the burden had shifted upon the Department and it was for the Department to discharge the burden positively that the allotment order had been used. The insistence of the Department that the assessee ought to have discharged the burden of proof negatively was clearly arbitrary and illegal. The learned counsel has also argued that the Tribunal overlooked the circumstances that although the applicant was a registered dealer, it had not received any form C or form XXX1 for import of coal, without which it could not have done so. In the absence of there being any evidence with regard to such essentia ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ere that a dealer had obtained an import licence for brass wares but it had not utilized it. The Department, upon proceedings under section 21, assumed that the dealer must have imported the goods against the licence and, therefore, turnover had escaped the assessment. The above contentions as raised by the learned counsel for the revisionist have substance and were accepted by this court. The court, while examining the matter, took into consideration the fact that the dealer had filed an affidavit stating that no import was made against the import licence but had not obtained any certificate from the relevant authorities to show that the licence had not been utilized. The court, while examining the matter, held that when the particulars of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... facts, which are within the knowledge of the assessee, then the burden lies on the assessee to discharge the said burden. I have heard learned counsel for both the sides at length and also perused the materials on record. In the facts and circumstances of the case, it is clear that an assessment order had been passed by the assessing authority declaring the assessee as non-taxable for the assessment year 1982-83. The proceedings were reopened and initiated under section 21 of the U.P. Trade Tax Act on the basis of the information received by the Department that the assessee had been allotted a certain amount of coal from the Department. The record reflects, other than the fact that information was received by the Department that c ..... X X X X Extracts X X X X X X X X Extracts X X X X
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